United States law has protected trademarks under state common law from colonial times, but it was not until 1870 that Congress first decided to create a federal trademark regime. The Lanham Act gives the United States Patent and Trademark Office (“USPTO”) regulatory authority over trademark registration.
Trademarks are administered by both state and federal law. State common law basically gives the principal source of protection of trademarks, but over time, federal trademark law has found much of the ground earlier covered by state common law and now gives the principal source of trademark protection. The main federal statute is the Trademark Act of 1946, as revised (the Lanham Act) which classified much of the existing common law on trademarks. The Patent and Trademark Office (PTO) is accountable for managing all laws associating with trademarks and patents in the U.S.A.
Rights to a trademark can be obtained by both being the first to register the mark with the PTO, or by being the first to practice the mark in commerce, which protects at the state level by statute and common law. To get the greatest protection for a mark, it is normally advisable to register the mark. A mark that is registered with the PTO must be marked with the ® symbol. Unregistered trademarks should be marked with a “tm”, and unregistered service marks must be marked with an “sm”.
Trademark rights can be wasted by improper licensing, assignment, generosity, or abandonment. If the use of a trademark is licensed without sufficient quality control or guidance by the trademark owner, the trademark will be canceled. And if the rights to a trademark are assigned to another party in gross, without the corresponding sale of any assets, the trademark will be canceled. Generosity is when a trademark drops its distinctiveness over time and becomes general, thereby failing its trademark protection. Trademark rights must be maintained through actual lawful use of the mark for a time, which varies, or rights to the mark will cease. Besides, if a mark’s registered owners fail to enforce the registration in the event of infringement, it may also expose the registration to become liable for an application for removal from the register after a certain time on the grounds of “non-use”.